Douglas Somerson, a pro wrestler, sued WWE for invasion ofprivacy; unauthorized use of intellectual property; unjust enrichment;violation of the Georgia Uniform Deceptive Trade Practices Act; violationof the right of publicity; and negligent supervision. Initially, the court found that Somerson was apublic figure, making his privacy and publicity claims coterminous inGeorgia. Then, the court found thatclaims based on video recordings of Somerson’s wrestling performances werepreempted by the copyright act because his rights fell within the subjectmatter of copyright and were equivalent to the exclusive rights granted by§106. (Why won’t courts just do conflictpreemption analysis here? It would makethings so much simpler, and not lead to such a strange divergence betweentreatment of photos and treatment of videos and sound recordings.) The court dismissed the other claims as well,but directed Somerson to file an amended complaint specifying what merchandiseallegedly contained his name and likeness.
The amended complaint alleged only invasion ofprivacy/violation of the right of publicity. Somerson alleged that he was a highly successful pro wrestler andentertainer who began his career in 1967 and worked under the name/persona“Pretty Boy” Doug Somers, known and loved worldwide. Due to injuries sustainedin his work, he stopped working in 2012.
WWE allegedly used his name and likeness without hispermission, including on its website in at least nine different places, and puthis image on the cover of at least one DVD. As to the websites, WWE argued that the First Amendment protected itsuses, given that it used his name either to describe his participation inparticular matches aired on the WWE’s television network or to describe hisrole in a tag team with another wrestler in the context of historicalnarratives of notable WWE performers and events. Somerson responded that WWE was usingfictional narratives about him as part of its advertising efforts, not as amatter of public interest.
Here are some examples of the website text: “Summary:Good 01' St. Mick Foley presents memorable matches and moments from Holidayspast. The Midnight Rockers, Shawn Michaels and Marty Jannetty, battle BuddyRose and Doug Somers in a Steel Cage at AWA Brawl in St. Paul. From 12/25/86.” “In 1986, Rose returned to Minneapolis,and while competing anew in the a WA, he and his tag team partner Pretty BoyDoug Somers had an intense rivalry against the young, upstart team of ShawnMichaels and Marty Jannetty, then known as The Midnight Rockers.” “It was during this time that [Sensational Sherri] beganperfecting her skills as a manager, leading ‘Playboy’ Buddy Rose and ‘PrettyBoy’ Doug Somers to the AWA Tag Team Championship.”
In Georgia, private citizens have a right of privacy andpublic figures have a similar right of publicity; Somerson pled that he was apublic figure. Georgia law protectsagainst the appropriation of another’s name and likeness without consent andfor the financial gain of the appropriator. However, under the Restatement (Second) ofTorts, which Georgia follows, “No one has the right to object merely becausehis name or his appearance is brought before the public, since neither is inany way a private matter, and both are open to public observation. It is onlywhen the publicity is given for the purpose of appropriating to the defendant'sbenefit the commercial or other values associated with the name or the likenessthat the right to privacy is invaded.”
Also, the right of publicity is in tension with the FirstAmendment, which means that there’s a newsworthiness exception. Newsworthinesscan depend on several factors: (1) "the depth of the intrusion into theplaintiff’s private affairs"; (2) "the extent to which the plaintiffvoluntarily pushed himself into a position of public notoriety"; and (3)"whether the information is a matter of public record." The first andthird factors favored WWE: the information on the website didn’t intrude intoSomerson’s private affairs and was a matter of public record. “The information is essentially a timeline ofplaintiff’s wrestling activities,” and was available on numerous otherwebsites. Liability can’t attach togiving further publicity to already-public information. Likewise, the extent towhich the plaintiff voluntarily pushed himself into a position of publicnotoriety also weighed against Somerson. He was a pro, not a hobbyist or amateur, and alleged he’d developed aworld-renowned persona. “‘Pretty Boy’ was plaintiff’s public image versus the privatelife of Doug Somers.”
The court analogized this case to Gionfriddo v. Major LeagueBaseball, 114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001), which rejected a claim byformer pro baseball players against MLB and others who sold media related tobaseball that included references to the plaintiffs’ names and statistics, aswell as in video depictions and still photos of their play/from their playingdays. These were matters of legitimate public interest, even as to days goneby, given the public’s “enduring fascination” with the history. Like the baseball players, Somerson puthimself in front of thousands of spectators, and “must have understood theimportant role media publicity played in promoting his ‘Pretty Boy’ persona andthe public's interest in professional wrestling in general.” The information about him on the WWE websitewas part of pro wrestling history, and that history was “integral to the fullunderstanding and enjoyment” of current matches and wrestlers.
Somerson argued that the newsworthiness exception didn’tapply because WWE was using his identity solely to further its own commercialefforts to market its own product, pro wrestling. Georgia courts havedistinguished commercial use from newsworthy use, with the state supreme courtopining that “[t]here is in the publication of one's picture for advertisingpurposes not the slightest semblance of an expression of an idea, a thought, oran opinion, within the meaning of the constitutional provision which guarantiesto a person the right to publish his sentiments on any subject.” (This is constitutional under Central Hudson why? Never mind.)
The court here considered whether the public interest aspect of thewebsite was “merely incidental” to its commercial purpose, following the guideof the Restatement (Third) of Unfair Competition in distinguishing between usein advertising/putting indicia of identity on merchandise versus use ofidentity in “news reporting, commentary,entertainment, works of fiction or nonfiction, or in advertising that isincidental to such uses.” The courtfound that WWE’s use fell into the latter category. Somerson’s identity wasn’t being used to sella product in an ad, but instead referred to as a part of wrestling history. Though he argued that WWE’s product waswrestling, and that WWE was trying to increase demand for that product, theuses still weren’t ads. At most, therewas incidental advertising on the site—on other pages one could purchase DVDsor buy tickets to matches. ButSomerson’s identity wasn’t being used to endorse or sell those products, andthose separate pages didn’t refer to him. It was ok for WWE to obtain an incidental commercial advantage if peoplewere drawn to the websites because of Somerson’s biographical information andhistorical wrestling facts. Abdul-Jabbarv. General Motors Corp., 85 F.3d 407 (9th Cir. 1996), on which Somerson relied,was distinguishable because that case involved an ad. Here, there was no endorsement or linkbetween Somerson and a product.
Last, Somerson argued that WWE was using his identity in a“fictionalized narrative” developed by WWE itself. But he didn’t allege that the facts about himon the WWE site were fictional. Therewere no allegations of false light. Evenif what he meant to argue was that the WWE controlled who won matches, so thestory of “Pretty Boy” was fictional, the events on the website still occurredas part of that story. Also, Somerson alleged in his complaint that he was a“culprit” in maintaining this story. “Ifnot a sport in the true sense of the word, then professional wrestling and thehistorical information about it is at least a form of entertainment, which isprotected by the First Amendment.”
Somerson also alleged that WWE used his image on the coverof at least one DVD, but WWE argued without contradiction that there was nosuch image of him on the cover (and the DVD was essential to the complaint, sothe court could look at it on a motion to dismiss). Instead, his name was referenced in a bookletavailable inside the DVD case, available only to people who already owned theDVD. Thus, there was no use in marketingor publicity.
View the Original article
No comments:
Post a Comment